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Exhibit 10.1
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is made as of the
5th day of September, 1997 between ALZA Corporation, a Delaware
corporation ("ALZA"), and Crescendo Pharmaceuticals Corporation,
a Delaware corporation ("Crescendo").
BACKGROUND
Crescendo desires that ALZA provide certain services to
Crescendo, and ALZA desires to provide such services, on the
terms and conditions set forth herein.
Now, therefore, the parties agree as follows:
1. Services.
Upon request by Crescendo, ALZA will supply Crescendo
with any number of the following services: accounting, legal,
stockholder relations and similar management and administrative
services, as mutually agreed. Such services will be provided at
reasonable times and upon reasonable notice, as mutually agreed.
2. Compensation.
Crescendo shall pay ALZA's "Costs" in providing such
services, monthly in arrears, within 30 days of the date of
ALZA's invoice. ALZA's "Costs", for purposes of this Agreement,
shall include reimbursement for (i) ALZA's direct and indirect
expenses relating to the services provided hereunder as defined
in Schedule A hereto and (ii) the cost of assets purchased for
use solely on behalf of Crescendo, the purchase of which is
approved by Crescendo.
3. Term and Termination.
The initial term of this Agreement shall commence on
the date hereof and shall terminate on December 31, 1997.
Thereafter, this Agreement shall automatically be renewed for
successive terms of one year each unless written notice of
termination is given by the terminating party to the other party
at least 30 days in advance of the expiration of any term;
provided, however, that in no event shall the renewal term extend
past the date that is 180 days after the exercise or expiration
of the option granted to ALZA pursuant to Crescendo's Restated
Certificate of Incorporation to purchase all but not less than
all of the shares of Class A Common Stock of Crescendo.
Crescendo may, in its discretion, terminate this Agreement at any
time upon 60 days written notice to ALZA. Either party may, in
its discretion, terminate this Agreement by written notice to the
other party in the event that the other party (a) breaches any
material obligations hereunder or under the Technology License
Agreement, the Development Agreement or the License Option
Agreement, each dated as of the date hereof and between ALZA and
Crescendo, or any license granted to ALZA under the License
Option Agreement, which breach continues for a period of 60 days
after written notice thereof, or (b) enters into any proceeding,
whether voluntary or involuntary, in bankruptcy, reorganization
or arrangement for the appointment of a receiver or trustee to
take possession of such party's assets or any other proceeding
under any law for the relief of creditors, or makes an assignment
for the benefit of its creditors.
4. Indemnification of ALZA.
Crescendo hereby agrees to indemnify, protect and hold
ALZA harmless from any and all liabilities, costs or expenses
incurred by ALZA as a result of services rendered by it under
this Agreement, including, without limitation, lawsuits of and
claims by third parties, except for liabilities, costs or
expenses resulting from ALZA's gross negligence or willful
misconduct. ALZA shall give Crescendo prompt notice, in writing,
in the manner set forth in Section 6.7 below, of any claim or
demand made against ALZA for which ALZA may be entitled to
indemnification under this Section 4.
5. Force Majeure.
ALZA shall not be liable for failure or delay in
performance of any of its obligations hereunder if such failure
or delay is due to causes beyond its reasonable control
including, without limitation, acts of God, fires, earthquakes,
strikes, acts of war, or intervention of any governmental
authority, but any such delay or failure shall be remedied by
ALZA as soon as possible after the removal of the cause of such
failure or delay.
6. Miscellaneous.
6.1 Waiver, Remedies and Amendment. Any waiver by either party
hereto of a breach of any provisions of this Agreement shall not
be implied and shall not be valid unless such waiver is recited
in writing and signed by such party. Failure of any party to
require, in one or more instances, performance by the other party
in strict accordance with the terms and conditions of this
Agreement shall not be deemed a waiver or relinquishment of the
future performance of any such terms or conditions or of any
other terms and conditions of this Agreement. A waiver by either
party of any term or condition of this Agreement shall not be
deemed or construed to be a waiver of such term or condition for
any other term. All rights, remedies, undertakings, obligations
and agreements contained in this Agreement shall be cumulative
and none of them shall be a limitation of any other remedy,
right, undertaking, obligation or agreement of either party.
This Agreement may not be amended except in a writing signed by
both parties.
6.2 Assignment. Neither party may assign its rights and
obligations hereunder without the prior written consent of the
other party, which consent may not be unreasonably withheld;
provided, however, that ALZA may assign such rights and
obligations hereunder to an Affiliate of ALZA or any person or
entity with which ALZA is merged or consolidated or which
acquires all or substantially all of the assets of ALZA.
6.3 Arbitration.
(a) All disputes which may arise under, out of or in connection
with this Agreement shall be settled by arbitration conducted in
the city of San Francisco, State of California, in accordance
with the then existing rules of the American Arbitration
Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction
thereof. The parties hereby agree that service of any notices in
the course of such arbitration at their respective addresses as
provided for in Section 6.7 of this Agreement shall be valid and
sufficient.
(b) In any arbitration pursuant to this Section 6.3, the award
shall be rendered by a majority of the members of a board of
arbitration consisting of three members who shall be appointed by
the parties jointly, or if the parties cannot agree as to three
arbitrators within 30 days after the commencement of the
arbitration proceeding, then one arbitrator shall be appointed by
ALZA and one arbitrator shall be appointed by Crescendo within 60
days after the commencement of the arbitration proceeding. The
third arbitrator shall be appointed by mutual agreement of such
two arbitrators. In the event of failure of the two arbitrators
to agree within 75 days after commencement of the arbitration
proceeding upon the appointment of the third arbitrator, the
third arbitrator shall be appointed by the American Arbitration
Association in accordance with its then existing rules.
Notwithstanding the foregoing, in the event that any party shall
fail to appoint an arbitrator it is required to appoint within
the specified time period, such arbitrator and the third
arbitrator shall be appointed by the American Arbitration
Association in accordance with its then existing rules. For
purposes of this Section 6.3, the "commencement of the
arbitration proceeding" shall be deemed to be the date upon which
a written demand for arbitration is received by the American
Arbitration Association from one of the parties.
6.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall
constitute this Agreement.
6.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of California
as applied to residents of that state entering into contracts
wholly to be performed in that state.
6.6 Headings. The section headings contained in this Agreement
are included for convenience only and form no part of the
Agreement between the parties.
6.7 Notices. Notices required under this Agreement shall be in
writing and sent by registered or certified mail, postage
prepaid, or by facsimile and confirmed by registered or certified
mail and addressed as follows:
If to ALZA: ALZA Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Senior Vice President
and General Counsel
If to Crescendo: Crescendo Pharmaceuticals Corporation
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
and Chief Executive Officer
All notices shall be deemed to be effective five
days after the date of mailing or upon receipt if sent by
facsimile (but only if followed by certified or registered
confirmation). Either party may change the address at which
notice is to be received by written notice pursuant to this
Section 6.7.
6.8 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be invalid or unenforceable,
it shall be modified, if possible, to the minimum extent
necessary to make it valid and enforceable or, if such
modification is not possible, it shall be stricken and the
remaining provisions shall remain in full force and effect.
6.9 Relationship of the Parties. For purposes of this
Agreement, Crescendo and ALZA shall be deemed to be independent
contractors, and anything in this Agreement to the contrary
notwithstanding, nothing herein shall be deemed to constitute
Crescendo and ALZA as partners, joint venturers, co-owners, an
association or any entity separate and apart from each party
itself, nor shall this Agreement constitute any party hereto an
employee or agent, legal or otherwise, of the other party for any
purposes whatsoever. Neither party hereto is authorized to make
any statements or representations on behalf of the other party or
in any way obligate the other party, except as expressly
authorized in writing by the other party. Anything in this
Agreement to the contrary notwithstanding, no party hereto shall
assume nor shall be liable for any liabilities or obligations of
the other party, whether past, present or future.
6.10 Survival. The provisions of Sections 1, 4, 6.3, 6.5, 6.7,
6.8, 6.9 and this Section 6.10 shall survive the termination for
any reason of this Agreement. Any payments due under this
Agreement with respect to any period prior to its termination
shall be made notwithstanding the termination of this Agreement.
Neither party shall be liable to the other due to the termination
of this Agreement as provided herein, whether in loss of good
will, anticipated profits or otherwise.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first set forth above.
ALZA CORPORATION
By: /s/ Xxxxx X. Staple
Title: Senior Vice President and
General Counsel
CRESCENDO PHARMACEUTICALS
CORPORATION
By: /s/ Xx. Xxxxx X. Xxxxx
Title: President and
Chief Executive Officer
SCHEDULE A
MANAGEMENT AND ADMINISTRATIVE SERVICES EXPENSES
DIRECT EXPENSES
Direct Salaries*
Temporary Help
Telephone and Communications
Board of Directors and Corporate Consulting
Travel and Entertainment
Annual Audit and Independent Accounting
Equipment Expense
Data Processing Services and Expense
Corporate Legal Expense
Supplies
Miscellaneous General Administrative Expenses
INDIRECT EXPENSES**
Management and Administrative Salaries
Equipment Depreciation, Rent, Maintenance and Services
Corporate Consulting and Temporary Help
Legal Expense
Facilities Expense
Corporate Data Processing Services and Expenses
Interest Expense
Miscellaneous General and Administrative Overhead
* Salaries include benefits.
** Indirect Expenses are billed at a rate of 50% of Direct Salaries.
